cuss, aw- & Gt! IN THE HIGH COURT OF AUSTRALIA. JACOBS, REASONS FOR JUDGMENT. Judgment delivered at Melbourne, on......... Priday.........&.8%b.March 19s... i JACOBS _V. GRAY OTR DER. Order discharging order nisi set aside. I n lieu thereof order that the order nisi to review be made absolute, the conviction of the appellant and order of Magistrate set aside and that the respondent pay to the appellant the costs of this appeal, of the two orders in the Supreme Court and of the pro- ceedings before the Magistrate. Judgment, JACOBS v. GRAY. Rich A.C.d. as JACOBS V_ GRAY Judgment. Rich A.C.d, This is an appeal by special leave from an order discharging an order nisi to review. The relevant facts of the case are that purporting to act under regulation 37 of the Egg and Egg Pulp Marketing Board Regulations 1937 made in pursuance of Sec. 43 of the Marketing of Primary Products Act 1935 (Victomia) the respondent gave a notice to the appellant dated the 2nd September 1940 requiring him to furnish to the respondent at the office of the Board a return in or to the effect of Form 5 of the Schedule to the Regulations "setting out the number of eggs produced by your fowls during the period from the Ist day of July 1938 to the 30September 1939, the manner in which and the name and address of the person or persons to whom such eggs were disposed of." The appellant did not comply with this notice whereupon an information was laid against him. Upon the hearing of the information the Police Magistrate convicted and fined the appellant. The appellant then obtained an order nisi to review on the ground that the notice in question was not authonised by the regulation and that it was no offence for the appellant to omit to \ comply with the notice. This order nisi was discharged by O'Bryan J. The Question for our determination is whether the notice in question comes within the terms of the regulation. The regulation so far as material reads :-""Any officer, servant, or employee of the Boara " duly authorized by the Board in that behalf may from time to time, and at any time by notice in writing order any producer, who owns or " controls, or has at any time during the period of twelve months thgn " immediately precegding such notice owned or controlled more/25 fowls, 'tor upon whose premises there are, or have been at any time during such 'tprecegding period as aforesaid, more than 25 fowls, to furnish to him 1% veturn in or to the effect of Form 5 of the Schedule, setting out tthe number of eggs produced by such fowls during such period or t ifi i i i which and 'merioas as may be specified in such notice, the manner in ' ethe names and addresses of the person or persons +o whom such eggs twere disposed of." The obligation imposed by the regulation in question upon a producer is. that imposed upon producers who at the date of the notice own or control or upon whose premises there are more than 25 fowls and those who at any time during a period of 12 months immediately precedéding such notice have owned or contrded or upon whose premises there have i been at any time during such period more than 25 fowls. The regulation | in effect imposes an obligation upon two classes--those who have at | the date of the nott¢e or had at some time during the 12 months : immediately precefding such notice more than 25 fowls. The regulation does not, in my opinion, speak of EKK two periods but only of one period or intéval of time defined by two termini--The date of the notice and "at any time during the period of 12 months immediately { precefding the notice ." Within that interval the officer giving the | notice may require the return to be furnished. The scope, sphere of Hl action or compass of the notice is confined within the period or interval to which I have referred, This limitation is created or implied by the use of the worus "such fowls" which relate back to the 4. fowls which the producer notified had at the time of the notice or had at some time during a period of 12 months immediately preceeding the notice. The natural meaning of the phrase " your fowls" in the notice given includes fowls which the producer notified now owns or at the time of the production of the eggs inquired after did own. The regulation, however, limits the officer of the Board to inquiring after "such fowls" and at best for the respondent "such 'txxkx means fowls at present owned and fowls which within 12 months immediately precefding the notice have been owned. The notice, is, therefore, too extensive on this view and is bad.The form to reg. 37 does not affect the interpretation to be given to the regulation, The period or periods in the form refer to the time chosen by the officer which must be confimed to the period or interval specified in the regulation. If the regulation were construed to mean any period or periods unlimited in time it would be uncertain, capricious and oppressive. If for example a producer had 26 fowls at some time in the year 1938 he would one be required by reading of the regulation to furnish in 1941 a return of the eggs produced by such fowls between the Ist of January 1938 and 3lst of December 1940, Upon the construction which I have given to the regulation the notice in question is obviously not authomized by it. In my opinion the order discharging the order nisi should be set aside and/liew thereof an order made that/ Seder nisi to review XKEXHK be made absolute, the conviction of the appellant set aside and that the respondent pay.to the appellant the costs of this appeal and of the two orders in the Court 'below. JUDGMENT. St. J. An Egg and Egg Pylp Margeting Board was gonstituted and appointed under the Marketing and Primary Products Act 1935. By force of this Act, a product (Sec.4) declared a commodity timder the Act is vested in and becomes tha absolute property of the Board and the rights and interests of every person in the commodity are converted into a claim for payment in accordance with the Act (Sec.19). Eggs and egg pulp have been proclaimed products and commodities under the Act. In 1937 the Governor in Council made regulations pursuant to Sec.43 of the Act and upon the proper interpretation of Clause 37 of those regulations depends this appeal. The material words of this clause are these:- Any officer ...... of the Board ...... may ...... by notice in writing order any producer who 1. owns or controls 2. or has at any time during the period of twelve months immediately preceding. such notice owned or controlled more than twenty-five fowls or upon whése premises 3. there are 4. or have been at any time during such preceding period as aforesaid more than twenty-five fowls to furnish him a return in the form of.the Schedule setting out the number of eggs produced by such fowls during such period as may be specified in such notice. The words "such fowls" referg to fowls of the kind or class already mentioned and might be rendered by the words "the aforesaid fowls", The returm must therefore be of eggs -2- produced by those fowls and none other. But so far the period in respect of which the return of eggs produced by those fowls has not been specified. That period is specified by the succeeding words of the regulation "during such period or periods as may be specified in such notice", In the present case, the appellant was required to furnish a return "setting out the number of eggs produced by your fowls during the period from the ist. July 1938 to the 30th. September 1939", The words "your fowls" in this notice may meanx the fowls owned or controlled by the appellant at the date of this notice, but having regard to the purpose of the nobice, the more probable construction is that it includes all the fowls of the class or kind mentioned in the regulation and indicated therein by the words "such fowls", On either construction, the notice complies with the regulation. It requires a return of eggs produced by fowls within the description covered by the regulation and specifies the period in precise accordance with the terms of the regulation, The notice is not open to objection on the ground that it relates to a period before the passing of the Act or the regulation. But this construction of the regudation was said to be so unreasonable that it must be wrong or the regulation bad. Any construction of the regulation will, I should think, lead to some practical difficulties. The Bolden rule of construction and the one most likely to. avoid difficulties is to give English words. and sentences. in Acts. and regulations their plain ordinary and natural signi tiea tion and to leave their amendment if. nEgaaSAry, to. the. proper authorities. The suggestion that the regulation itselt might. be ultra vires on the ground of unreasonableness is more fanciful than real, for the regulation was nade. by the. .GQxeRngr, in Council and was not. disallowed by Parliament as it aight have been under the Act -3+ Sec.43 Subsecs. 4 & 5. given In my opinion, the natice/to the appeliant was a good notige and the decision of the Supreme Court to that effect should be affirmed and this appeal dismissed. JACOBS" ¥_GRAY. Judgment Williams J. The facts are stated in the judgment of Rich A.C.J. and show that the short point to be decided oh this appeal is whether the notice of the 2nd September 1940 was authorised by regulation No 37(1) of the Egg and Pulp Merketing Board rgguletions made by the Governor in Council in August 1937 pursuant to the powers conferred by sec.43 of the Primary Products Aet 1935, The material part of the regulation is set out in His Honour's judgment and I need not repeat it. In my opgnjon it divides persone liable to be served with a notice into two classes, (1) producers who own or control more than 25 fowls at the date of the service of the notice, or who have had at. any, time during ef a period of 12 months immediately preceding euch date dene so; and, (2) producers on whose premises there are on this date or on whose premisss there have been at any time during this period more than 25 fowls. The return is to set out the number of eggs produced by " such fowls". These words mean according to their ordinery gram- matical construction in the case of olass (1) the fowls which the producer owns or controls at the date of the service of the notice or has owned or controlled at any time within 12 months prior thereto; and in clase (2) the fowls on the premises of tne Produce® at this date or at any time within this period. The return is te be in or to the effect of Form 5 in the Schedule and for euch period or periods as may be specified in the 2. notice, The poiat at issue is whether the notice mst be limited to Tequiring a return in respect of s period or periods not more than 12 months prior to the service thereof, er whether it can be given for sny period after the date of the commencement of the regulation, 80 that, for instance, a notice could be given to dsy requiring a return for the period of the last three months in 1937. It is clear that no producer can be served with the notice after 12 months have expired since he owne® or controlled or haf on his premises more than 25 fowls anf it seems to me thaf the reference to "such fowls" shows thie period was meant to be the effective period for sll the purposes of the regulation. My Haw contended that the worde "such fowls" read in the con- text of the whole reguletion igcluding the form meant 911 the fowls owned or controlled by the producer or on hie premises during any period or perieds specified in the notice however remote. The eachedule is part of the regulations and the forms can be looked at to throw light on their construetion: Eldorado Ice Cream Co.Ltdt v. Clark 1938 1 K.B. 715; Helebury 2nd ed. vol 31 p.466, But Form 5 . does not eppear to threw any light on the problem in the present case, ' Lt contains nothing to suggest the critical worgs "such fowls" should not. receive their ordinary grematical meaning. . It would be possible for auch fowls to have been owned or con- trolled or to have been on the premises prior to the period of 12 months preceding the date of the service of the notice and, during sush period) they would have mixed with other fowls and the eggs have become intermingled, Unjeas the period that a return may be required is limited it would be, impossible for any person to srrange his fowl yards so that he could comply with the notice unless he kept every fanaka hen in as separate coop and a complete record of every egg she laid. The conclusion 1s that if the reguletion ie to be given a : aeterel construction she only returns that osn be required mat relate to the eggs "euch fowls" produce during the limited period. The appeal should be ellowed, Pee ne